Editor’s note: Michael Bowsher is the coordinating co-chair of the September 19, 2016 conference at Kings College London, which will address procurement issues after Brexit; registration is free, at http://www.eventbrite.co.uk/e/opening-transatlantic-procurement-markets-tickets-25739851589. Michael’s contribution below is part of a very interesting review of regulatory issues that may emerge from Brexit.
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Procurement
Michael Bowsher QC of Monkton Chambers considers the potential implications for the EU procurement regime, a key area for criticism from those who have campaigned to leave the EU.
“At a very simple level, it is hard to see politicians, administrators or courts wanting the disposal of the money raised from taxpayers to be done without some transparent framework in which to operate. Perhaps even more fundamentally though, these are not just the EU’s rules (which of course reflected many of the UK’s demands). Any modern trade agreement between industrialised nations includes a chapter regarding the opening up, and therefore also the regulation of, government procurement markets. The EU rules themselves are actually the expression in the EU of the requirements of the WTO’s Government Procurement Agreement (GPA). The UK or England and Wales could join the WTO without joining the GPA, but it would be very strange if it did given the list of countries that are already signed up.
“Finally, it already seemed likely that the EU would soon legislate to provide for the means of closing its own government markets to countries that did not provide reciprocal access. If that happened, we would have to put in place something comparable to the GPA rules just to continue trade for this 20% or so of the EU market, and those GPA rules require something very like the EU directives with some appropriate remedies. So, while there will be a lot of change, some elements of the current system are likely to remain.
“In the short term, there will be an immediate impact on projects, research and so forth funded by the EU, or in some way related to the EU. Those dependent on those projects and research that are funded may be immediately affected. The volume of government funded work generally may reduce and this will affect the practice of procurement law, although history shows that this can be unpredictable. Quite often when there are more people chasing less work, there is more concern as to how that smaller pie is distributed and more disputes over the result.”
